Magistrate Not Empowered To Effect Delivery Of Possession Of Property U/S 107 CrPC: Jharkhand High Court

The observation came from Justice Sanjay Kumar Dwivedi:

"Looking to section 107 Cr.P.C., it is crystal clear that the Magistrate can proceed if the person is within his jurisdiction or the place of the apprehended breach of the peace or disturbance is within the local limits of his jurisdiction and only to that effect the Magistrate can pass the order under section 107 Cr.P.C. Under section 107 Cr.P.C., the Magistrate is not empowered to put possession to any person and it is done by order dated 09.5.2017 which is not the spirit of section 107."

The petition was filed seeking quashing of Sessions Judge order whereby dismiss the criminal revision preferred by the petitioner on the ground that the petitioner was not a party to the proceeding in connection with which the revision application was preferred and also for quashing the order dated 09 May, 2017 passed in Misc. Case No.57 of 2016 instituted in terms of section 107 of the Cr.P.C whereby learned Sub Divisional Magistrate, Sadar, Chaibasa has been pleaded to direct the Circle Officer to effect delivery of possession of the property in question in favour of the O.P.nos.2 and 3.

Counsel for appellant argued that the petitioner is owner of the land in question as he has purchased the land in question from O.P.no.3 vide sale deed dated 31 August, 2015 contained at Annexure-1 to the petition. He submitted that the magistrate did not have power to pass an order under section 107 Cr.P.C by which possession has been put into to the O.P.No.2.

Further he argued that the court is only required to look into that if any breach of peace or any disturbance is there, he can order to execute a bond for one year only and by the impugned order the possession has been given to the O.P.no.2.

The Court after hearing the counsels and perusing documents on record noted that as per the impugned order sheet the case was registered on 22.9.2016 and by the next order dated 09 May, 2017 without calling to file show cause on behalf of the other parties, the order has been passed which is again without following the due process of law as without considering the show cause the said order has been passed.

Court said that the order is without jurisdiction and that if any illegality is going on, the said cannot be allowed to continue further. Further it was observed that in revisional order the court has dismissed the petition on the ground that the petitioner is barred by time and the petitioner is not party in the proceeding. The sale deed annexed with the petition suggest that the petitioner has purchased the land in question.

"It was incumbent upon the O.P.No.2 to made the petitioner party in the petition which has not been done by the O.P.no.2 and in absence of the petitioner the order has been passed that does not mean that the petitioner is not entitled to challenge the said order if the right is being infringed in such a way."

Accordingly, the Sessions order was set aside.